Opinion
No. 2:15-cv-937-MCE-KJN PS
08-20-2015
TANYA MCDANIEL, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.
ORDER
On August 11, 2015, the court dismissed the action for lack of subject matter jurisdiction pursuant to the substantiality doctrine. (ECF Nos. 4, 6.) Thereafter, on August 18, 2015, plaintiff filed a notice of appeal as well as a motion to proceed in forma pauperis on appeal. (ECF Nos. 8, 9.)
Federal Rule of Appellate Procedure 24 provides that "a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court." Fed. R. App. P. 24(a)(1). Pursuant to 28 U.S.C. § 1915(a)(3), "[a]n appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith." The good faith standard is an objective one. Coppedge v. United States, 369 U.S. 438, 445 (1962). A plaintiff satisfies the "good faith" requirement if he or she seeks review of any issue that is "not frivolous." Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445).
For the reasons stated in the July 24, 2015 findings and recommendations (see ECF No. 4), adopted by the district judge on August 11, 2015 (ECF No. 6), the court finds that the instant appeal is frivolous. The court thus certifies that plaintiff's appeal is not taken in good faith.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion to proceed in forma pauperis on appeal (ECF No. 9) is DENIED.
2. The Clerk of Court is directed to serve a copy of this order on plaintiff and on the Ninth Circuit Court of Appeals.
IT IS SO ORDERED. Dated: August 20, 2015
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE